Royal Commissions are back.

Investigative tribunals such as the Independent Commission Against Corruption (ICAC) and the Crime and Corruption Commission (CCC) are essentially permanent Royal Commissions in themselves. Royal Commissions were developed in 11^th century as a means for the Crown to collect advice outside of the more traditional institutions of the Parliament.

The Royal Commission has evolved over the centuries to encompass a range of similar institutions. Although forms vary, the form stays true to its 11^th century predecessor. Whether the Commission is conferred by prerogative or statute, inquiries by commission are now a part of the usual course of executive government in Australia.

The purpose of a Royal Commission is to enable the executive government to investigate subject matter and gather facts for its own purposes.

What happens if you’re called before a Royal Commission today to give evidence?

Most people are concerned about giving evidence because they fear speaking out in the public eye. Naturally, the public is very interested in the words and actions of witnesses and this tends to put them at the center of media attention.

This often leads to the widespread publication of evidence collected by means of an Inquiry. Publicly giving evidence puts your conduct in the spotlight and your reputation at risk.

Is there any way to prevent this?

Sometimes, yes, but it can be extremely difficult.

Do you have to give evidence at a Royal Commission?

Yes. But a commission to inquire must be conferred for an appropriate reason.

Namely,

‘to secure an inquiry into and report upon, and, if necessary, the making of recommendations in respect of, a matter which is of a public character, having a connection with the peace, order and good government of the relevant State or the Commonwealth, and concerned with the activities, motivations and the quality or nature of persons concerned in the functions of government, Parliament, and public office’.

This legal statement of the permission to investigate is consistent with the very first proceedings in the 11^th century by William the Conqueror as described by the Anglo-Saxon Chronicle.

So shutting down an investigation before it begins (thereby preventing an Inquiry from taking effect) might sound like a good idea to people who could be adversely affected by appearing before it.

However, because an Inquiry is an investigation that doesn’t result in any opinions of legal effect, it’s extremely difficult to prevent it from happening. An Inquiry doesn’t search for any set outcome. It only finds facts and conveys opinions based on evidence as it is revealed.

This differs from an adversarial curial process in which evidence is openly known to the parties before the hearing begins and each party seeks to prove its case by presenting the evidence as it supports their position.

An Inquiry is entitled to pursue any line of investigation that it feels may produce facts that relate to the case. An Inquiry may not always be able to prove direct links in a suspected or suggested chain of events. But this doesn’t mean the Inquiry can be stopped.

As long as the Inquiry Commissioner is able to prove a bona fide connection between facts and the subject matter under inquiry, just about anything goes. So a person subject to coercive powers can’t easily lighten the pressure.

Consistent with its purpose, an Inquiry has complete control over its processes.

An Inquiry:

• May determine for itself in what order matters are investigated
• Is not ordinarily bound by the rules of evidence
• Is not required to follow a procedure in the summoning of witnesses
• Is not limited regarding the nature of the evidence to be secured
• Is not required to disclose how or when it will act

The Inquiry Commissioner has greater freedom in determining how relevant the facts are. Rather than making decisions based upon written guidelines, the Commissioner may exercise his or her good judgment. The Commissioner is also entitled to not reveal his or her hand prematurely. Doing so could alert a suspect to the progress of the investigation or even close off other sources of information.

Basically, an Inquiry will only be compelled to disclose its plans only in very exceptional circumstances.

All of this freedom allows an Inquiry to proceed with its investigation uninhibited. Even though a judicial review can stall an Inquiry in its beginning stages, this hardly makes the Inquiry irrelevant because an Inquiry is not limited in the amount of information it can gather.

It would completely defeat the purpose of an Inquiry to place limitations on it.

So if you are called to give evidence, make sure that you seek legal advice. Your lawyer can ensure that it is lawful for you to give evidence. Your lawyer can represent you before the Commission, in most cases.

We mentioned coercive powers earlier, so let’s go back to that topic for more understanding.

The Availability and Use of Coercive Powers

It’s almost impossible to stop an Inquiry, as we discussed before. Let’s talk about what happens if you are subject to a Commission’s coercive powers requiring you to produce documents or to answer questions.

Commissioners often face the challenge of needing relevant information from individuals unwilling to share it.

Now, a common law Royal Commission doesn’t confer enough power on the Commissioner to compel cooperation of witnesses or evidence-producers. And it’s true that people often don’t want to cooperate.

The simple fact that an Inquiry is needed means that somewhere along the line, there was a failure or deficiency on the part of people involved. To protect themselves or those they know, such people understandably may hold back what they know.

For this reason, Royal Commissioners at Commonwealth, State and Territory levels have all been provided with significant coercive powers.

Commonwealth Inquiries: A Preliminary Issue Concerning Permissible Subject Matter

There is a preliminary constitutional issue to consider relating to the Commonwealth Parliament’s power to confer coercive powers by the passing of legislation.

It’s been suggested that the Commonwealth can appoint a Commissioner to inquire into any subject matter it may choose. However, where the subject matter falls outside of the heads of power conferred on the Commonwealth by sections 51 and 52 of the Constitution, the Commissioner cannot invoke any coercive powers provided for in the Royal Commissions Act (Cth). This is on the basis that coercive powers can only be conferred by a validly enacted statute.

In Attorney-General (Cth) v Colonial Sugar Refining Co Ltd (Colonial Sugar Refining Co), the Royal Commissions Act 1902 (Cth) was held by the Privy Council to be ultra vires and void. So much so, in fact, that it implied the Royal Commissioners had been provided with general coercive powers.

Royal Commissions are now authorised to exercise their coercive powers strictly for the purpose of conducting inquiries into matters falling within the legislative powers of the Commonwealth.

Whether Colonial Sugar Refining Co remains good law or not has been questioned on the basis that it relies on the now-discredited State reserve powers doctrine impliedly adopted by Griffith CJ and Barton J in the original High Court decision. So, too, has the correctness of a decision of Fullagar J sitting alone in 1954, when his Honour dismissed an application for an injunction to restrain the Petrov Royal Commission from continuing to investigate.

However as the decision has not been overruled and the majority view is that it remains good law.

Limiting the use of coercive power for a Commonwealth Royal Commission can seem to limit the effectiveness of an Inquiry as it investigates matters of national importance.

This capacity, however, has not proved in practice to be problematic. This is because ex abundanti cautela Commonwealth practice allows the states to assist and issue their own commissions when there is uncertainty about whether the subject matter at hand falls within the Commonwealth’s legislative power.

One example of this is the establishment of the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse. In this instance, all Commissioners have commissions issued by the Commonwealth and each of the States.

The Use of Coercive Powers

A Royal Commissioner has significant coercive power to summon witnesses and compel them to answer questions.

In Thelander v Woodward the New South Wales Court of Appeal found that the full gamut of the law of contempt applies to contempt of a Royal Commission, including sanctions for giving replies to questions that are not real answers and are designed to ‘fob off’ the inquiry. Inquiries in some cases respect the privilege against self-incrimination and legal professional privilege.

That, however, is not a global proposition. Most legislation conferring coercive powers on Inquiries expressly inform witnesses of the reality that their privileges are limited. For the purposes of the law of defamation, proceedings in the course of an Inquiry will be afforded protection as if their proceedings were those of a court.

This means two things:

• Commissions can examine witness without most of the fundamental protections
• The witness can be confident that the evidence they give, even while implicating them or others in discreditable conduct, will not result in exposing them personally to civil litigation

As mentioned earlier, it’s fundamental that you seek legal advice before you appear as a witness. The purpose of being called to give evidence is usually benign, but in some cases it won’t be and you’ll need a lawyer on hand to assist you.

While your lawyer cannot in most cases prevent you from giving evidence, they can assist you in that process and ensure your rights are protected, as far as possible.

Reviewing a Royal Commission’s Work

Having considered what it means to appear before a Royal Commission, let’s now talk about how you can review a commission and preserve your rights if they have been breached.

We’ll also consider the importance of having lawyer acting for you when you are presenting evidence.

Inquiries are subject to review by the judicial branch of government. The mechanisms by which courts supervise Inquiries can be summarised as follows:

• Courts can rule on the validity of the instruments by which Commissioners are appointed
• Courts have jurisdiction to decide whether a matter falls within an Inquiry’s terms of reference so as to attract an Inquiry’s coercive powers
• Courts can determine whether pursuing a line of inquiry would constitute a contempt of court because it would be likely to prejudice pending judicial proceedings
• Courts can review the ultimate findings of an Inquiry on the basis that a finding was not open on the available evidence or a person in respect of whom findings were made was not afforded procedural fairness and then provide declaratory relief for that person

The evidence obtained by the use of coercive powers cannot be used against an accused in criminal proceedings.

It’s important to note that these mechanisms of review largely rely on the Inquiry having already acted against an affected person.

These features attempt to strike a balance in this delicate matter. Freedom and power are fundamental to allowing the Commissioners to make a success of Inquiries. But it’s equally as critical to realise that the conferral of such extraordinary coercive power has the inherent risk of excess that must be mitigated.

Contempt of Court and Using Evidence Learned

A Commissioner’s actions may give rise to a contempt of court.

At common law, an Inquiry cannot conduct itself in a way that would constitute a contempt and it will be restrained from doing so. An Inquiry is not exercising judicial power. Where an Inquiry threatens to cross the line into the functions of the judicial branch, the judicature does indeed have the ability to restrain it.

However, there is limited authority that the state Parliaments can confer on a state Inquiry to act in contempt of its Supreme Court.

This has been demonstrated recently, and while rare, it is not without precedent. That proposition does not apply to the Commonwealth.

The greatest risk is that evidence learned through the use of a commission’s coercive powers can be used against the accused in criminal proceedings. This risk has increased in recent years with a growing number of standing Royal Commissions acting as ‘Crime Commissions’, endowed with extraordinary coercive powers.

The High Court firmly maintains that evidence gained by coercive means has no place in a court considering a criminal matter. A commission cannot compulsorily examine a person accused of an offence which is the subject of the examination. If a person is compulsorily examined about a matter on which a prosecution made later on, then a mere disclosure of the contents of the examination to the prosecutor can be, but is not always, enough to quash a conviction on the basis that the accused did not receive a fair trial. Much depends on the statute that confers power upon the Commission and different statutes can result in different decisions.

It has been suggested that an Inquiry’s use of coercive powers is prohibited where it appears that the main purpose for exercising them would be to obtain a forensic advantage for the prosecution. However, the High Court in R v IBAC seems to have rejected that proposition. The law in this area is very quickly developing. For an interesting summary of the relevant cases in this area and how the law is developing see the recent decision of the Western Australian Court of Appeal in A v Maughan [2016] WASCA 128.

If the subject matter of the enquiry relates to any conduct which might give rise to criminal charges, then you definitely need to engage the assistance of a lawyer.

At TGB, we are engaged with this issue in other contexts on a frequent basis and we are experts in this area.

If you’ve been called before a Commission or investigation, seek advice from our highly experienced team.[/call-to-action]

Judicial Review

Attempts to shut off avenues of review have proved futile. At the Commonwealth level, the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’) is the statutory instrument often used to seek review of decisions of investigative tribunals.

After Australian Broadcasting Tribunal v Bond, decisions of federal investigative tribunals were said not to be justiciable unless the decision made was final, operative or determinative.

Following Bond, there was a risk that decisions made during a Commonwealth Inquiry would be beyond the reach of the ADJR Act and subject only to the prerogative writs.

That did not prove to be the case.

The decision in Bond has had a modest impact in restricting the scope for ADJR Act review of investigative tribunals.

For example, refusal of an adjournment has been held to be justiciable. This contrasts with the restricted power of appellate courts to review decisions by judges who refuse to grant an adjournment in judicial proceedings.

At the state level, some states have attempted to foreclose the possibility of obtaining judicial review of actions of their inquiries. The ACT, New South Wales, and South Australia, purport to constrain judicial review of their state Inquiries by a broad privative clause.

However, the effectiveness of broad privative clauses is doubtful in light of the High Court’s decision in Kirk v Industrial Court (NSW). Since R v Hickman; Ex parte Fox it has been accepted, specifically in the context of a privative clause in section 9 of the Royal Commissions Act 1971 (SA), that a privative clause is subject to significant limitations.

Submissions made to the Australian Law Reform Commission prior to Kirk by the Law Council of Australia noted that

‘It is unclear what use a privative clause, such as that included in the Royal Commission Act 1917 (SA), would serve, other than to further confuse matters and to encourage arid jurisdictional debate’.

Following Kirk, it seems highly likely that a privative clause intending to prevent the relevant state Supreme Court from granting relief on account of a jurisdictional error is invalid.

In Kirk, the High Court established minimum requirements of judicial review and held that an attempt to remove or limit the supervisory jurisdiction of the supreme courts through a privative clause is beyond the power of the state legislatures.

The decision in Kirk is important. It seems that any jurisdictional error made by an Inquiry will render the decision subject to correction by a relevant Supreme Court whether there is a privative clause or not.

So Royal Commissions are always accountable to the judicial branch of government when they commit a jurisdictional error. The validity of privative clauses that remain on the state statute books in relation to commissions of inquiry have not been substantively considered since Kirk.

Now that we know about the possibility of judicial review, the next question is: what can be challenged?

Two major areas come up: a commission acting outside of its terms of reference, and a commission failing to afford procedural fairness to a participant.

Constraining the Use of Coercive Powers

When a line of inquiry blatantly goes beyond its terms of reference, then it can be successfully challenged.

The remedy for this is simply a declaration that the inquiry has acted beyond its power. Standing commissions of inquiry that initiate their own investigations are most susceptible to such a challenge.

This situation was dramatically illustrated in the case of ICAC v Cunneen. The NSW ICAC began investigating Crown Prosecutor Margaret Cunneen SC for alleged corrupt conduct. Cunneen’s alleged conduct was not being investigated for the effect it might have had on her official functions as a Crown Prosecutor.

As a public official, her conduct could have adversely affected her ability to perform official functions and make balanced decisions. Cunneen obtained a declaration that her alleged conduct was not ‘corrupt conduct’ within the meaning of the ICAC Act. ICAC appealed to the High Court and was unsuccessful. ICAC v Cunneen is notable as one of the few (until recently) decisions where an inquiry has been held to have acted beyond its power in initiating an investigation before its substantive proceedings had begun.

This case exposed the extraordinary jurisdiction that would have been held by the ICAC, with corresponding power to override basic rights and freedoms on a ‘sweeping scale’, if the ICAC’s own construction of its statute was correct.

However, ICAC v Cunneen was a result of the ICAC Act allowing the Commission to initiate its own investigations. For that reason, principles of statutory interpretation helped determine where the principle of legality applied.

Recently in Western Australia, in A v Maughan, the Court of Appeal held that the Corruption and Crime Commission in that state exceeded its jurisdiction by purporting to initiate prosecutions for offences identified in the course of its investigations but which had no relevant connection with the functions of the Commission or the administration of the CCC Act.

While these decisions are examples of the judicial branch declaring an inquiry to have acted beyond power, the decisions contrast with circumstances in which the executive sets broad terms of reference for an inquiry, and a Commissioner investigates matters within those parameters.

An Inquiry’s coercive power can be challenged on the basis that the material being sought is not relevant to the scope of the inquiry.

As I indicated earlier, it’s exceptionally difficult to make a good challenge.

In Lloyd v Costigan, Toohey J held that the only basis on which a witness could successfully challenge his summons was where he could show that there was no question that could be asked of him that was relevant to an inquiry. This does not alter the fact, however, that in judicial review proceedings, investigative tribunals can be the subject of an order for discovery to assist the affected party in determining an Inquiry’s plans.

Procedural Fairness

The second viable method to review the actions of Inquiries lies in challenging their conduct on the basis of failing to afford procedural fairness to a participant.

The application of the rules of procedural fairness to Inquiries differ from their application to litigation. The general principles can be traced to the decision of the English Court of Appeal in R v Deputy Industrial Injuries Commissioner; Ex parte Moore, where Diplock LJ described the rules binding a Royal Commissioner as follows:

First, he must base his decision on evidence, whether a hearing is requested or not. Secondly, if a hearing is requested, he must fairly listen to the contentions of all persons who are entitled to be represented at the hearing.

The common law has been identified as a source of the general duty to accord procedural fairness in executive decision-making. That duty can be excluded as a matter of statutory construction, but can arise as a matter of positive statutory implication.

The content of the duty to provide procedural fairness depends on all of the circumstances of the case; there are no immutable rules about the content of the duty. But again, because an Inquiry does not aim to provide opinions with operative legal effect, it can easily evade the conventional legal consequences of judicial scrutiny.

In most cases, a Commissioner is not required to define issues which are obvious to a party who may be affected by any decision. Nor is a decision-maker obliged to invite comment on his evaluation of a potentially affected party’s case. Further, a person who may be affected by a decision to which the requirements of procedural fairness apply cannot complain if the argument that they have contended for is not accepted by the decision-maker.

This notwithstanding, the rule is a potent one.

Thelander v Woodward is a powerful example of how procedural fairness can used to restrain a Royal Commissioner.

Commissioner Woodward committed Thelander to the Supreme Court for contempt of his inquiry for not truthfully answering the questions put to him. The Court of Appeal on review found that the Commissioner had the jurisdiction to find that a contempt had prima facie been committed by way of inference from what Thelander said. But in reality, no jurisdiction was actually conferred upon him to enter upon a wide-ranging inquiry as to whether Thelander had committed perjury.

Although done by mistake, once that journey of establishing falsity by inquiry begins, there was no going back. It would have been a denial of procedural fairness to disregard the standard protections which justice demands.

For that reason, the committal for contempt was set aside. Thelander was referred to by Samuels JA in Balog v ICAC where the NSW Court of Appeal observed that where there may be a strong social interest in a Commission revealing its conclusions to the community after a public hearing, it could not permit any body other than a court exercising criminal jurisdiction to make a pronouncement of criminal guilt. ICAC was restrained from publishing such a finding.

The Courts will also quash a Commission where the holder of a Commission behaves in a way that leads others to believe that there is a bias. The courts want to make sure that a person appearing before an Inquiry is treated fairly. It’s also important that the presiding Commissioner is a just individual who seems reasonably open to persuasion.

Keating v Morris is a particularly useful example of the infringement of the bias rule because of just how severe the breach was. Commissioner Morris conducted himself in a manner that gave rise to a reasonable apprehension of bias. The commissioner was unfair to some witnesses while being extremely considerate to others. He was disdainful of a particular class of doctors, made unjustified interventions, contemplated making findings based on instructions he assumed a witness had been given, made findings that a prima facie case existed to charge a doctor with a criminal offence based on inadmissible evidence, and held undisclosed private meetings with potential witnesses. Besides this, he was aggressive, intimidating, intemperate.

That conduct was too much for the Queensland Supreme Court. It held that in view of the intense interest in the inquiry and its activities, it was particularly important that the Commissioner was seen to be impartial in arriving at any conclusion affecting the parties. The Court also stated that parties and the general public should have full confidence in the fairness of decisions and in the impartiality of decision-makers. According to the Court, condemnation without a proper hearing or by an apparently biased tribunal is unacceptable, and exoneration by such a tribunal may be worthless and defeat the purpose of such an inquiry.

Keating v Morris demonstrates that while Inquiries are creatures of the executive, they must still operate in a way that that gives the public confidence in them, consistent with the executive’s status as an essential arm of government.

The executive is not allowed to conduct a witch hunt disguised as an Inquiry.

Where it does overstep the bounds, the Commission will be quashed and the Inquiry restrained.

Judicial Review: Some Conclusions Regarding Its Effectiveness

Complaints of commissioners show just how effective challenges to the acts of Inquiries can be. Commissioner Cole has discussed the difficulties that arise as a result of judicial review:

[A]s the law currently stands the effectiveness of Royal Commissions can be greatly hampered by the threat of court action. Court action will inevitably delay a Commission and involve very considerable time and expense. It can easily derail an investigation. This Commission naturally sought to avoid litigation. That meant, however, that it was sometimes possible for baseless objections to frustrate an investigation, particularly where the person or organisation concerned was prepared to fight a matter in the courts largely irrespective of its merits. The benefits of frustrating the Commission’s investigations were, apparently, thought to outweigh the costs of court action even though that action was unlikely to be successful.

It is notable in the context of judicial review that an investigative tribunal such as a Inquiry is usually expected to submit to any order the court may make, and not become an active party in the proceedings.

An inquiry is limited in its ability to defend itself. The constraining principle is this: an inquiry can only seek to become a party in exceptional circumstances. A circumstance such as requiring the submission of the scope and exercise of the powers and procedures it adopts.

Otherwise, there is no other effective contradictor and the inquiry’s participation will not endanger its appearance of impartiality in the future.

Where allegations of procedural unfairness are leveled at an inquiry it is, as a matter of principle, unable to defend itself.

As Professor Allars SC has argued, the link between the Hardiman principle and the bias rule of procedural fairness has not been fully explored. That link is beyond my scope. But I can explain a bit by way of an example.

As Associate Professor Hamer has argued, it’s interesting to consider what sort of defence Commissioner Morris would have mounted, given the opportunity to defend himself in Keating v Morris. The discovery of apprehended bias in that case might not have been as inevitable as some claim when you consider the authorities’ and the Comimissioner’s public comments made at the time.

The point is, however, that inquiries are subject to the constraints of judicial review. They can be delayed by the filing of writs or other processes, even if those challenges may not bear fruit. They must act within their terms of reference and must accord the parties procedural fairness. Where their actions are challenged they are generally precluded from defending themselves. In this way, they are accountable for their conduct even if they are ultimately not subject to legal consequences.

Even though it is almost impossible to prevent or control the direction of an Inquiry, Inquiries are still subjected to some limitations.

Inquiries:

• Are accountable for their internal processes
• Must afford procedural fairness to those they hear from and those they investigate
• Cannot use information obtained through coercion against the accused

In other words, while Royal Commissions keep the executive accountable by being able to inquire almost unrestrained, they may be subsequently held to account for breaches of fundamental principles. This would render the entire inquiry pointless.

Contact us to learn more about how inquiry proceedings and how being called before a Royal Commission could affect you.